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Kücükdeveci v Swedex GmbH & Co KG

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Last updated 25th July 2010 (part update 26th September 2019).

The European Court of Justice said in this very important case that the Framework Employment Directive gives expression to a general non-discrimination principle in European Union law, and can be applied by national courts to override national legislation more than previously thought.

European Court of Justice, January 2010. Full judgment: eurlex.europa.eu.


German legislation lays down a minimum period of notice for dismissal, based on period of service. However, years worked before the age of 25 were excluded in calculating the minimum period of notice. The claimant was dismissed aged 28, having been employed since the age of 18. Under the legislation her minimum notice was calculated based on 3 years service rather than 10 years. She argued that this was illegal age discrimination.

Held by the European Court of Justice (Grand Chamber):

The case had to be decided under primary European Union law rather than the Framework Employment Directive as such. In Mangold v Helm the European Court had acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law. The Framework Employment Directive gives expression to that principle – the directive does not itself lay down the principle of equal treatment in the field of employment and occupation.

Looking at the directive, the European Court considered that the German legislation in this case constituted unjustified age discrimination which was illegal.

The German court had said that the German law could not be interpreted so as to comply with the directive. Also the directive did not have ‘direct effect’ because the employer was not a public authority. It might therefore be expected that the German court could not override the German legislation when deciding the case before it.

However, the European Court pointed out again that the directive simply gave expression to a general principle of European Union law. That being so, said the Court, it was

“for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78, to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle…”.

My comments

Applicability to disability discrimination

There is every likelihood that the principle of this case applies to disability discrimination as well as age. This is especially so in the light of the Court of Appeal decision in Benkharbouche. To quote a blog from Cloisters Chambers: “In Benkharbouche v Embassy of Sudan (bailii.org) [2015] … the Court of Appeal held that Directives can be relied on “horizontally” (i.e. between private parties) if the Directive is giving effect to a fundament [sic] right contained in the EU Charter which does not require specific expression in national law, such as the principle of non-discrimination.”

The Court of Appeal, summarising the Kücükdeveci case, specifically said that the European Court “held that there was a general principle of non-discrimination in EU law which had to be given effect.”

Why is this case important?

Essentially, the previous view was that if the Equality Act cannot be re-interpreted so as to be consistent with the Framework Employment Directive under the Marleasing principle, a UK court can only override the Equality Act if the claim is against a public body of a member state, so in this context a UK public sector employer, eg a local authority (the principle of direct effect). The Kücükdeveci case seems to allow the Directive to be, in effect, directly applied also in a claim against a private sector employer. This is sometimes called “horizontal” direct effect, ie relying on the directive against someone other than a member state.

I discuss this in more detail below, and also on my page Framework Employment Directive>Where UK law is inconsistent, what happens?

Directives are not designed to be applied by national courts, but states which are members of the EU are obliged to bring in national legislation to put them into effect. The national court then applies the national legislation. Even so, it has long been established that, where possible, a national court must interpret national statutes so as to comply with a directive (the Marleasing principle). The court can do this even if it involves altering the wording of the statute, but there are boundaries. Here the German court held it was not possible to re-interpret the German statute.

Furthermore, if a statute which does not comply with an EU directive cannot be re-interpreted, it has long been established that a national court can give a directive which is sufficiently clear “direct effect” against a public body of a member state – but the employer in this case was private sector.

A private person or company may also have a Francovich claim against a state for compensation for failure to implement a directive, but that is different to the question of whether a national court can override a national law in the case before it.

The European Court now seems to be saying that where, as here, the directive is giving effect to a general principle of European Union law, the national court, must if need be, disapply any provision of national legislation so as to give effect to the EU law. This applies even in the case of a private sector employer where national law cannot be re-interpreted. It seems that the national court does this through being bound by and applying primary European Union law, the non-discrimination principle to which the directive gives expression, rather than by applying the directive as a directive.

The European Court said that for the EU law principle of non-discrimination to apply, the case must fall within the scope of European Union law. This case did fall within that scope – from December 2006 when the Framework Employment Directive had to complied with in Germany, the directive had brought the German legislation within the scope of EU law.

The European Court cites the Charter of Fundamental Rights in support of its decision. The Lisbon Treaty made the Charter legally binding from December 2009, but Britain obtained a written guarantee which was intended to mean that the Charter could not alter British labour law. However, this case related to a dismissal that happened before the Charter became legally binding. Also, the Charter was just part of the Court’s argument. It seems unlikely that the written guarantee obtained by Britain about the effect of the Charter would alter the impact of this case in Britain.

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